What if the states started to fight back against federal refusal to protect American borders? What if they started challenging, even nullifying, federal actions that promote illegal aliens coming and staying here?
Despite the centralization of America since at least 1865, the 50 states retain a surprising amount of autonomy. And oddly enough, the flood of immigration since the 1965 open-borders reform is eroding the centralization that was cemented in place a century earlier. Demographically, the states differ much more in 2015 than they did in 1965, turning E pluribus unum on its head, as Al Gore did in 1994: “Out of one, many.”
If activists want to reform immigration at the state level, the first battle should be over language, Michael Johns told me. He’s a 30-year conservative activist, former Heritage Foundation scholar, and current advisor to Tea Party groups. “We’ve lost control of the debate, the words we use,” he said. “These really aren’t immigrants in the traditional sense. Their very first act on entering the country was to violate the federal law and the state law. And they’ve continued in many cases to be violators of the law.”
Even “illegal immigrant” isn’t accurate, he said, though it is used by Heritage and other conservative groups. He says that the lawbreakers should always be referred to as “illegal aliens.”
The politically correct purge of our language should be recognized but not overestimated. In 2013, the Associated Press dropped illegal immigrant and even illegal from its stylebook to describe illegal aliens. AP Executive Editor Kathleen Carroll explained that, “Instead, it tells users that ‘illegal’ should describe only an action, such as living in or immigrating to a country illegally.” That reasoning is reflected in President Barack Obama’s preferred term, undocumented immigrant.
But the AP, the New York Times, and TV news shows no longer hold as much influence in these days of alternative news sources, from Chronicles to millions of blogs. So state-level activists can score a victory against the federal government simply by refusing to use p.c. language. “We need to take control of the debate,” Johns urged.
Johns said another step is for states to pass laws restricting immigration, “then enforce them as much as they can, even if the federal government is violating its constitutional mandate to defend the country.” Trouble arises when it comes time to turn the illegals over to the federal government, which still controls the deportation process. The states “have to rely on some degree of cooperation and collaboration from ICE [Immigration and Customs Enforcement],” Johns said. “And that’s not happening.”
The feds keep making it difficult simply to enforce the law. On November 7, U.S. District Court Judge Susan Bolton struck down a 2005 Arizona law punishing immigration smugglers, called coyotes.
“The law was modified by the controversial SB 1070, which expanded the ability of local authorities to stop people suspected of being in the country illegally,” reported the Los Angeles Times. In 2012, the U.S. Supreme Court struck down parts of SB 1070, including the section that required all immigrants to carry proper identification papers. It did allow police to check on a suspect’s status as a legal immigrant or illegal alien.
Bolton wrote that the 2005 state law
imposes additional and different state penalties than federal law; it divests federal authorities of the exclusive power to prosecute these specific smuggling crimes; and criminalizes conduct not covered by [federal law] because it does not contain a safe harbor exception for religious activities like the federal statute does.
Another court action had to do with illegal aliens arrested for serious felonies. Under Proposition 100, which voters passed in 2006, the aliens could be detained without bail until trial. The law was upheld by state courts, the federal district court, and a panel of the U.S. Circuit Court of Appeals in the case Angel Lopez-Valenzuela v. Maricopa County. But on October 15, 2014, the en banc Ninth Circuit, notorious for its left-wing opinions, overturned that part of the law.
John Eastman, a constitutional-law professor at Chapman University School of Law, is handling the appeal before the U.S. Supreme Court.
Rosemary Jenks, the director of government relations for Numbers USA, told me about another tactic that gets around the federal government’s refusal to deport illegals: Enforce existing federal laws against smuggling, and state laws if they eventually are upheld by the Supreme Court.
“Any border state could do that legitimately,” she said. “Indeed, at this point, any state could do that.” She agreed with Johns that federal jurisdiction over the deportation of illegals remains a problem, but the feds would have more difficulty turning loose convicted smugglers.
Jenks pointed to the federal E-Verify program. According to the website of the U.S. Citizenship and Immigration Services,
U.S. law requires companies to employ only individuals who may legally work in the United States—either U.S. citizens, or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment.
E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E-Verify is fast, free and easy to use—and it’s the best way employers can ensure a legal workforce.
Jenks said that, although federal agencies don’t adequately use E-Verify, the states are free to require its use for employment, and it works quite well. “States can also follow federal law and not allow in-state tuition for illegal aliens,” she suggested. “They can prohibit illegal aliens from getting driver’s licenses, under the Real ID act. They can prohibit illegal aliens from getting any kind of state welfare. The only thing the government actually requires is emergency medical services, and we wouldn’t want that to end. But the states can deny any other welfare benefit if they say illegal aliens are ineligible.”
According to Bryce Shonka, an activist in Washington State and former deputy director of the Tenth Amendment Center, a key to pushing back against the feds is strong local involvement. The conventional wisdom is that the 1803 U.S. Supreme Court decision Marbury v. Madison gave the Court final say on all legal matters in the country. But Shonka told me that there has been an “erosion” of that dominance, though it “hasn’t been black and white. You’re seeing movement in the opposite direction, and it’s being tolerated by the federal government. There’s a lot going on that isn’t being directly addressed on the federal side. They’re trying to treat these uprisings, if you will, with kid gloves.”
He specifically pointed to the federal government’s tacit acceptance of the legalization of medical marijuana by voters in the states of Colorado and Washington in 2012, and by Alaska and Oregon in 2014. (Washington, D.C., also legalized pot in 2014, but because it’s a federal district, it cannot claim states’ rights.)
That’s a big shift in just a couple of years; as recently as 2012, Eric Holder’s Department of Justice was vigorously enforcing the federal marijuana prohibition in all states and threatening to continue to do so, should states vote for legalization.
The pushback applies as well to illegal aliens. “I would suspect that, if what they’re doing had popular support in Arizona, they’re probably going to be able to do things the way they want,” Shonka said. “Which is what the Founders intended in the first place. If the people of Arizona want to do it like that, they’re going to have a lot more leeway than they would have, say, 40 years ago.”
If the feds act against the states on immigration, Shonka continued, “According to the Tenth Amendment, there would have to be something in the enumerated powers of the Constitution for what they did to be valid. I think that, for a long time, they have been crying wolf for a lot of these things, and not being tested on it. Now they are.”
Johns agreed with Jenks that, whatever happens with state-level activism in the court system, patriots can work to deny benefits to the lawbreakers. “I think states will see the biggest return on that investment,” Johns said, “because the biggest cost to these states is Medicaid plans and the increasing burden on the social infrastructure that the illegals are placing on them.”
In Plyler v. Doe (1982), the Supreme Court required the states to provide illegal-alien children with the same public schooling as native-born students. The decision created another powerful incentive for illegals to come here, essentially providing a free babysitting service and, in most schools nowadays, at least two free meals per day.
Johns said school districts should simply refuse to enroll such students. “The enforcement methodology would be interesting,” he said. “I suspect the federal government would move to curtail or cut off sources of federal funding. But the reality is that the continuance of providing these services is one of the things that’s bringing illegals here.”
Jenks was not so sanguine about confronting the feds directly. “The Justice Department would sue them,” she warned. “Just like it sued Arizona for SB 1070. A whole bunch of the advocacy groups would just attack it. There is no way that this would not go through the court system if a state or locality decided to do this.”
According to Jenks, there’s another way to fight Plyler. The Court three decades ago only seemed to mandate a free K-12 education for illegal-alien children. “What it said was that Texas did not provide sufficient evidence of the excessive cost to the state of providing free education. Essentially, Texas had not documented well enough the cost, both in terms of dollars, and in terms of citizens’ schooling declining.”
She outlined how a state potentially could end the free schooling for illegals under Plyler: Carefully document the increased cost to the state, factoring in the expenses involved with building new schools and hiring new teachers based on the increase in the student population. Next, show the declining test scores of native students as the number of illegals increases. Then, cancel the funding.
“Somebody would sue them—the ACLU or whomever—and the case would go back through the courts,” she predicted. If the matter reached the Supreme Court, Plyler would not have to be overturned but simply applied, with the Court affirming “the cost was well documented and exceeded the benefits.”
Indeed, now would be the perfect time to test Plyler, as tens of thousands of illegal-alien children flood in from Central America—and with millions more illegals coming as a result of a blanket amnesty from President Obama.
If illegal aliens choose to leave inhospitable states, they could go back to their homelands—or to more welcoming U.S. states. When Mexican President Enrique Peña Nieto visited California last August, Gov. Jerry Brown said of the United States, “This is the other Mexico.” According to the Los Angeles Times, “Brown spoke about the interwoven histories of Mexico and California and nodded to the immigrants in the room, saying it didn’t matter whether they had permission to be in the United States.” Brown added, “You’re all welcome in California.”
In 2014, California passed a law granting driver’s licenses to illegal aliens starting January 1, 2015. Earlier, the state offered them in-state college tuition. And when I voted on November 4 in Huntington Beach, nobody at the polling station asked for an I.D. from me or anybody else I saw.
Given this golden welcome from the Golden State, why shouldn’t states provide illegals free bus rides to the coast? It’s hard to see how the feds could object to that, especially during a harsh winter in Michigan or Wisconsin.
If the government won’t do it, private immigration-reform groups could hand out information flyers listing the phone numbers of such agencies as the California Social Security Administration: (800) 772-1213.
According to the California Department of Social Services website, the state is proud to provide a taxpayer-funded Cash Assistance Program for Immigrants:
CAPI is a 100 percent state-funded program designed to provide monthly cash benefits to aged, blind, and disabled non-citizens who are ineligible for SSI/SSP solely due to [sic] their immigrant status. . . . CAPI recipients may be eligible for CalFresh benefits [food stamps], Medi-Cal, Special Circumstances, and IHSS [in-home supportive services]. . . . CAPI payment amounts vary depending on a person’s marital status, living arrangements and other income.
Flyers passed out could include pictures of sunbathers on the beach in winter and tourists at Disneyland.
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